Mexican child custody and visitation

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Mother and Father both born in Mexico and married in Mexico.
Children both born in the USA.
Children both have dual citerzenship.

What factors can effect visitation\custody for father?
Can mother take children back to Mexico away from father?
Does visitation have to be filed in both USA and Mexico to be enforced?

The court order wherever originating will normally be enforceable--not always easily.


http://travel.state.gov/family/abduc...untry_508.html

GENERAL INFORMATION: The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") came into force between the United States and Mexico on October 1, 1991. Therefore, Hague Convention provisions for return would apply to children abducted or retained after October 1, 1991. Parents and legal guardians of children taken to Mexico prior to October 1, 1991, may still submit applications for access to the child under the Hague Convention in some cases.

Mexico is a federal republic formed by 31 states and the Federal District. It has no specific federal legislation for implementing the Hague Convention; rather, it is implemented under existing Mexican state law. Each state has an independent judicial organization empowered to apply and interpret the laws of that state. The judiciary in each state is headed by a Superior Court of Justice and contains civil, family, and criminal judges. It is the family judges who have jurisdiction for resolving problems concerning custody, rights of access, and child abduction based on the laws of that state. They are the judges, therefore, that will receive and rule on the Hague Convention cases.

Mexico has established a Central Authority charged with applying the procedures of the Hague Convention by working with state authorities. The Mexican Central Authority is part of the Secretaria de Relaciones Exteriores, or foreign ministry, and is responsible for cases of children taken from and taken to Mexico . Involvement of specific offices varies from state to state. The Central Authority generally coordinates its work through the offices of Desarollo de Integral de la Familia (DIF)-similar to offices of family services in the U.S.-in most states. Cases may also involve the state prosecuting attorney’s office.

The Mexican Central Authority will, upon receipt of the Hague Convention application, prepare a written communiqué for the court, containing an explanation of the Hague Convention and its objectives. The special circumstances of the specific case and its possible solution are also outlined for the court.

The first step in a Hague Convention case in Mexico is to confirm the location of the child. The judge having jurisdiction over the case will be the judge serving the area where the child is living. A case cannot move forward in the judicial system until the child’s location is known. If an application contains a known address for the child, the Mexican Central Authority will forward the application to the Superior Court of Justice of the state where the child is thought to be residing. That office will then assign it to the specific judge.

When no specific address is known, the Mexican Central Authority submits a request to the appropriate police authority for them to locate the child. This can be a time consuming process and can cause significant delay in the processing of your case. Therefore, the most complete information available concerning the location, or possible location, of your child should be included in the application.

Once the case is with the court, the judge sets the schedule for the rest of the case. Generally, the family judge will encourage the taking parent to voluntarily return the child. If the taking parent refuses, the judge is able to order the parent from leaving or taking the child (or both) from the jurisdiction of the court until the Hague Convention case is finished. The procedures vary slightly from state-to-state, but generally the taking parent is notified of the date and time of a court hearing for the case. The amount of notice that must be given varies, but is usually at least 24 hours; this notice is required by law. Whenever possible, at the time the notice is provided to the taking parent, the child is taken into the custody of the DIF and resides in a facility managed by the state until the case is resolved.

The Mexican Central Authority is notified in advance of the hearing date and time by the judge’s office. If possible, it is important for you to attend the hearing. After hearing those parties present at the hearing, the judge will issue the order of return (or denial of return). This order is usually effective immediately, so if you are at the hearing and return is ordered, you might be able to leave with the child. Generally, the judge will order that the child be turned over to the Central Authority for coordination of the logistics of the return.

Please Note: Submit your completed, signed application as soon as possible. Do not wait to get a custody order to begin the application process. A custody order issued after the taking or retention (a "chasing order") is not relevant to your Hague case and may, in fact, complicate it.

INSTRUCTIONS: To apply for assistance under the Hague Convention in Mexico , you will need to submit the following:

1) The U.S. Central Authority application form. This form may be obtained from the Office of Children’s Issues or downloaded off of our web site. Please refer to Appendix 2 of the of the U.S. Central Authority’s brochure, "International Parental Child Abduction" for instructions on completing the application form.

2) Originals or certified copies of the child/ren's birth certificate(s), your marriage certificate, and divorce decree, as appropriate.

3) A certified copy of the custody order in effect when the child was taken to Mexico or a copy of the state law that establishes your right to custody, and any agreements regarding custody or access. Note: It is not necessary to have sole custody to apply for assistance under the Hague Convention. If no custody order exists, and your state’s laws are silent as to a parent’s right of custody, an affidavit of law from an U.S. attorney may be acceptable.

4) Photos of the child and of the taking parent. These photos will not be returned to you.

5) Translations into Spanish for all English-language documents, including the application and any extra pages attached to the application.

Please refer to the attached checklist for guidance in preparing your application.

Please remember:

All documents should be typed or very clearly printed in black ink, but should be signed in blue ink. The English and Spanish language applications submitted must clearly have an original signature.
Fill out the Hague application as completely as possible. The physical descriptions of the taking parent and child (Parts I and III) are especially important, and should be completed regardless of the existence of accompanying photos. Also important is your explanation of the circumstances leading up to and surrounding the child’s removal from the United States (Part IV on the application). In cases where the child has been gone for a few months or more, your statement -which can be done on a separate piece of paper-should be as detailed as possible regarding any actions you have taken to recover the child in the interim.
If you are concerned that the taking parent will flee or hide the child when notified of the proceedings, it is very important that you note this and state the reason for this concern in section VIII of the application or on a separate page. You may attach an additional sheet if needed.
There is no fee to file a Hague application in Mexico .
Incomplete applications cannot be submitted to the Mexican Central Authority, as they are unable to take action on them.
LEGAL COUNSEL: You do not need to hire a private attorney to have your case processed. While the Mexican Central Authority will not assign an attorney to take charge of the case, they will prepare the documents needed to submit the case to the judge. Family judges in Mexico are authorized to intervene ex-officio in matters involving family and have the power to enforce their decisions, so a private attorney is not required.

You may choose to do so, however, to follow-up on the case and to provide direct information on the status of the case. If you hire an attorney, he/she should contact the Mexican Central Authority as soon as possible after the application has been submitted. Some parents have felt that having a private attorney resulted in less time delays in the application process.

TIME FRAME: Time delays can be a problem in Hague Convention cases in Mexico , especially when the location of the child is not known. Once a case has been sent to the court, the case is completely under the control and jurisdiction of the judge as to the time schedule. Once a case has been decided, however, enforcement of the decision is generally swift.

APPEALS: In Mexico , decisions on Hague applications may be appealed by either party, which may delay enforcement of a decision. The parent must, however, hire a private attorney in order to file an appeal. You should consult directly with your Mexican attorney regarding the appeal procedures.

In addition to the right to appeal a decision in a Hague case, there is a special appeal available in the Mexican judicial system called an amparo. An amparo is a claim that a constitutional right has been violated by a government agency or a government process. When there is an amparo filed in a case, all action ceases until the amparo has been ruled on-often many months later. An amparo can be filed at any time during the case, so the case can be stayed even before a judge can rule. Decisions on amparos can be appealed, further delaying action by the judge. Several cases have been delayed for years while amparos and appeals of decisions have blocked the case.

NON-HAGUE CIVIL REMEDIES: You may also seek recognition of an U.S. custody order in the Mexican courts. This process takes several months and you will need the services of a Mexican attorney. Please note the Mexican courts are not required to recognize a foreign court order.

You may also seek custody through the Mexican court system. You will need the services of a Mexican attorney.

The non-Hague civil remedies noted above may be pursued in conjunction with your Hague application. The filing of a Hague application for return of a child, however, should result in a stay of any custody proceedings pending the outcome of the Hague hearing.